Apportionment of blame for underground leakage at petrol station was just and equitable

Charlton J (nem diss): Appeal from High Court in respect of liability - lease from 1995 gave appellant and respondent, who was part of the Maxol group, relationship as lessee and lessor - lease held that lessee had covenant to ensure equipment from which leakage occurred was in good working order - lessor as supplier of petrol should have known about faulty equipment and should have warned the lessee - in failing to do so, lessor was liable for 40% of the responsibility and lessee 60% - appellant lessee appealed on grounds that as tenant, he had no obligation to repair under the lease, that a letter existed saying that the lessee had no responsibility for repairs and that a greater share of the blame should have been apportioned to the lessor - clauses in lease to repair installations, fixtures, pipes and apparatus, and that if a tenant does not repair, the landlord may repair and collect for such repairs - indemnity clause to keep the lessor indemnified against any damages or claims in respect of damage to property arising out of the state of repair of the condition of the premises - plaintiff/appellant as purchaser covenanted to indemnify vendor against all actions, proceedings, costs and damages - other individual sold petrol for £250 licence and no formal lease without consent of lessor from 1996 - lessor confirmed its consent to this by letter in 2000 - lease of 1995 contains clause detailing equipment that the lessee has a duty to maintain, which included pumps and tanks - lease did not contain description of the equipment which it is the responsibility of the lessee to maintain, repair and replace - second schedule of lease not filled out as both parties knew the details of the equipment it contained - no waiver given by the company in respect of the lessee's obligations under the lease of 1995 - company was not estopped from maintaining its action against the defendant/appellant, and nothing in the correspondence or actions of the parties upon which an estoppel on convention might be found - plaintiff/respondent claiming that as lessor, lessee was required to indemnify to them any occurrence that resulted in damage to property, regardless of fault - express and clear words would have been required to exempt the lessor, not present in this case - section 34 of the Civil Liability Act 1961 - apportionment of liability just and equitable having regards to the degrees of fault between the parties and equated with blameworthiness, not potency of causative factors - lessor should also bear some responsibility as they had various checks and inspections of the equipment - site owned by Maxol through lessor - equipment was replaced as necessary by the lessor without furnishing bill to the lessee - assumption of the responsibility of the lessee by the lessor whereby the lessor was inspecting, repairing and replacing the equipment that was under the covenant to repair - absence of communication by the lessor as to what might occur when the relevant equipment began to be upgraded - lessee never informed of any potential problem.